Wyse v. Russell

16 Misc. 53, 37 N.Y.S. 683, 73 N.Y. St. Rep. 264

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1896
• Status: Published

Opinion

Bischoff, J.

The defendants are husband and wife, and . together occupied rooms in the plaintiff’s house under a vúitten lease,; but, having left the premises .prior to its expiration, this action was. brought, to recover the rent claimed to have thereafter accrued.

'Two defenses were litigated — eviction and a cancellation of the contract, and the justice below found in favor of the defendants.

.The record satisfies us that this conclusion was not incorrect) since,-while there was. the customary conflict of evidence as to the main facts, ample grounds for. finding a constructive, eviction appeared..' !

.Iti appears, according to the defendant’s evidence,. which the justice ' was authorized to-, credit, - that the' plaintiff, who resided continuously upon the premises; Was a person of hasty temper; prying and officious, and rendered the condition of tenancy, through -unreasonable ■ demands and repeated discourtesy, undesirable, if not Unbearable. ' -

1 The culmination, of the difficulties was , reached during the last month of the defendant’s occupancy, when a' violent attack, not only verbal but physical, .was made by the plaintiff upon Mr. Russell. Thereupon, notice was given of the defendants’ election to terminate the tenancy; the" plaintiff expressed hér" determination that they “ must go,” and -the premises were •abandoned’- at the end of that month, up to which time rent had been paid in advance.

.-‘TJpOtt this state' of facts, if there were not a'good .defense-of constructive eviction through the lessor’s breach, of the covenant of' quiet and peaceable enjoyment, that covenant might properly have' been omitted' from the lease in question.

The case falls' most fittingly .within the, ruling of Cohn v. Dupont, 1 Sandf. 263, which was, indeed, a case .not -so strong for the tenant as the present, -since there no actual violence was indulged in by the landlord, a series of minor, annoyances alone being held to constitute an eviction. See, also, Sully v. Schmitt, 147 N. Y. 248.

= - Judgment affirmed, with costs..

MoAdam, J., concurs.

Judgment - affirmed, with costs,